Statements and Speeches

Remarks of the Chief Electoral Officer

on Bill C-23, An Act to amend the Canada Elections Act and other Acts and to make consequential amendments to certain Acts

before the
Standing Senate Committee on Legal and Constitutional Affairs

April 8, 2014

Check Against Delivery

Thank you, Mr. Chair.

It is a pleasure to appear today as part of the pre-study of Bill C-23. I am accompanied by Mr. Stéphane Perrault, Deputy Chief Electoral Officer, Legal Services, Compliance and Investigations.

Given that this is a pre-study, I thought it would be useful to take a step back and provide you with my perspective on the key objectives underlying our electoral process, as well as the important challenges that we currently face. My hope is that this will assist the Committee in assessing whether Bill C-23 helps address those challenges.

While I intend to highlight certain elements of the bill in my remarks, I do not plan to enter into a detailed review of the various changes I recommend. I have brought a table indicating what those changes are and would be happy to discuss them after my introductory remarks, if the Committee so wishes.

1. Fundamental Objectives of Our Electoral System

The legal framework governing Canadian elections is a reflection of certain key values or fundamental democratic objectives, namely: accessibility, fairness and trust. In modernizing the electoral process, it is useful to consider these objectives.

Accessibility

By "accessibility," I refer both to the legal right to vote and be a candidate in federal elections, as well as to the actual means of exercising that right. Under our Constitution, every Canadian citizen is guaranteed the right to vote. That right is made meaningful, however, only to the extent that there is a proper legal and operational system in place allowing it to be exercised.

Over the years, not only has the right to vote expanded, but barriers have been removed by providing more options for voters, with the aim of giving all Canadians, no matter their particular circumstances in life, a true opportunity to exercise their right to vote. While barriers do remain, in particular for electors with disabilities, our constitutional obligation is to strive to reduce those barriers. It is also our international commitment under the United Nations' Convention on the Rights of Persons with Disabilities.

Fairness

A second fundamental objective of our electoral system is fairness. By this, I mean a system where those who compete for electoral success do so under conditions of relative equality. The expression "level playing field" is often used by the courts and experts to describe our regime of limits on election expenses, which serves to ensure that elections are not dominated by those with access to greater resources. Limits on contributions, in conjunction with public financing, similarly contribute to the level playing field.

Fairness also means a process for administering elections that is free from partisan bias or the appearance of it. In this regard, fairness is also linked to the third objective, which is trust.

Trust

The importance of preserving trust in the integrity of the electoral process is reflected in the various procedural safeguards that protect against fraud in the electoral process, and that ensure the transparency and reliability of results.

Trust also depends on timely and effective enforcement mechanisms that promote compliance with the rules and address cases of non-compliance when they arise. In our system, enforcement is primarily the role of the Commissioner of Canada Elections.

Given these three objectives – accessibility, fairness and trust – what then are the main challenges facing our electoral democracy?

2. Main Challenges Facing Our Electoral Democracy

Voter Participation

In my view, the single most important challenge facing our democracy today is the decline in voter participation. Declining turnout is far from unique to Canada and is not a recent phenomenon. But our participation rate is one of the lowest among advanced democracies.

The decline in voter participation is mainly driven by the decline in youth turnout beginning in the 1970s. We know from our research that young adults who do not vote in their first election tend to also not vote as they get older. This is why civic education programs are so important. There are, however, encouraging signs. From 2004 to 2011, first-time turnout has levelled off and is showing signs of increasing.

At the same time, Elections Canada's priority is to ensure that those who already want to vote have the necessary information to do so. At the last general election, 98% of our outreach and information expenses, or some $33 million, related to informing electors of where, when and how to vote. The parallel election program delivered by Student Vote cost less than $800,000 or 2%.

There are, nevertheless, electors for whom participation is a challenge. With a rapidly aging population, this is increasingly true of seniors. They tend to be less mobile and have more difficulty with the voter identification requirements, in particular the requirement to prove their address. This is why, at the last general election, I authorized the use of the voter information card (VIC), along with another piece of ID, at certain voting locations – namely, in seniors homes, student residences and on reserves.

Building on our own experience of the last election and that of other jurisdictions, and in consultation with political parties, we have been planning to allow the use of the VIC as proof of address, along with another piece of ID, for all electors in 2015. This would serve to remove barriers, as well as to reduce the recourse to vouching, which has proven complex for election workers to administer.

Complexity

In this regard, a second important challenge for our electoral system is the complexity of the rules. Overly complex rules can create barriers to participation or situations of non-compliance that undermine trust in the integrity of elections.

This is a problem with respect to the voting procedures, which are administered by some 200,000 ordinary Canadians with limited training and often no prior experience. Our voting process was designed in the 19th century and assigns to two workers – a deputy returning officer and a poll clerk – the task of administering all voting procedures. While the system was originally simple, successive amendments, and in particular the voter identification rules enacted in 2007, have made it much more challenging for poll workers.

Complexity also presents a challenge with respect to political financing. Again, this is a situation where the rules have become considerably more complex in recent years through successive reforms. And here as well, the regime relies largely on the work of volunteers serving as official agents for candidates. They are responsible for ensuring that the campaign respects all of the requirements of the Act, and they are ultimately required to account for the campaign's finances.

It has become increasingly difficult for these volunteers to understand and to comply with the regulatory requirements. In my recommendations to Parliament, I have strived to identify ways of reducing the regulatory burden and of improving the simplicity and clarity of the rules for the benefit of all participants. This remains one of my ongoing concerns.

Compliance and Enforcement

Finally, a third challenge that we face is the lack of adequate compliance and enforcement mechanisms to ensure timely and effective responses to contraventions of the Canada Elections Act.

Currently, the Act deals with regulatory non-compliance exclusively by way of criminal offences and criminal sanctions. This is a heavy-handed and time-consuming approach. It is ill-suited to the majority of cases of non-compliance that would be more effectively addressed by way of administrative sanctions.

In cases that do warrant an investigation, experience shows that the Commissioner lacks the proper tools to conduct his investigation in an effective and timely manner. Moreover, the fines currently in the Act are not sufficiently severe.

3. Impact of Bill C-23

I will now turn to Bill C-23 itself. In reviewing the bill, I would invite this Committee to consider the impact of its provisions on the challenges I have identified as well as on the main objectives of our electoral framework.

Positive Elements

Some elements of Bill C-23 will help address some of our challenges and support the key objectives.

The addition of one more advance voting day will provide more convenience for Canadians casting their ballot, although it must be said that the evidence suggests the impact on participation will be limited.

I also welcome the proposed increase of the fines. More importantly, I believe that the introduction of administrative sanctions for instances of overspending by political parties or candidates is a positive development. It is a move away from the traditional model of criminal sanctions and I certainly hope that it will serve as a precedent for future reforms.

Areas for Improvement

Bill C-23 also includes a number of reforms which, while positive, require amendment in order to produce their intended benefits.

This is the case, in particular, with the proposed regime for guidelines and written opinions. These could be extremely useful tools, but are unworkable as provided for in Bill C-23. Changes are needed to allow rulings to be made in a reasonable timeframe. Others are also needed to prevent partisan abuses that could result if political parties are allowed to require formal rulings on matters that are under investigation or pending before the courts. In addition, if rulings are to be legally binding on the Chief Electoral Officer and the Commissioner, they should be equally binding on the external party compliance auditors.

The regime for voter contact services must also be improved. In order to be useful, the regime must not only require information on the service providers, clients and scripts, but must also require the retention and production of telephone numbers called. As well, calls made for political parties and candidates by their own staff and volunteers should not be exempted from the disclosure requirements. As it stands, it seems that the proposed regime would increase the regulatory burden on political entities (and service providers) without significantly improving the integrity of the process and the ability to conduct timely investigations.

Fundamental Concerns

Finally, a number of aspects to Bill C-23 are deeply concerning, and I feel it is my duty as Chief Electoral Officer to inform Parliament of those concerns in the clearest possible terms. I would like to focus on five in particular.

The first of these are the proposed restrictions on voter identification – namely, the removal of vouching for electors who cannot provide documentary proof of identity and address, as well as the prohibition on using the VIC along with another piece of ID.

It has been argued that all electors should have ID documents to vote. But this is not the problem. The problem, for a significant number of Canadians, is to have documents proving their address.

The notion that all Canadians have in their possession documents establishing not only their identity, but also their current residential address, is simply wrong and not borne out by experience. For example, seniors living in long-term care facilities often do not have drivers' licences, hydro bills or even health cards, which are typically kept by their children or facility administrators. Young Canadians commonly live at home or, as students, move frequently. They often do not have any documents to prove their current residential address.

Overall, we estimate that approximately 120,000 active voters rely on vouching, and we can expect that a large proportion of them would not be able to vote under the proposed rules.

Just as importantly, in the absence of any credible indication that vouching or the VIC are used fraudulently, their removal would compromise accessibility without in any way enhancing the integrity of the electoral process. We have not been able to find any other jurisdiction in Canada where a requirement to provide documentary proof of residence to vote is not also accompanied by a safety net such as vouching or a statutory declaration.

A second aspect of Bill C-23 that is cause for serious concern is the fact that it will diminish the level playing field in two ways: by increasing spending limits; and, more significantly, by introducing an exception for certain fundraising expenses, effectively creating a loophole in the regime. It is hard to conceive of soliciting funds without promoting a party or candidate. There is also no way of monitoring whether the individuals being solicited fall into the permissible category of previous donors, since the Act does not require reporting the names of contributors who give $200 or less – which represents the vast majority of donors (78% between 2007 and 2012). There is also no requirement to report which contributors were contacted pursuant to the exemption. The fundraising exception is simply unenforceable and is an open invitation for abuse.

A third aspect of Bill C-23 that I find troubling is the prohibition on the Chief Electoral Officer providing information to the public on any subject matter except, essentially, how and where to register and vote. Of course, it is important that Elections Canada provide public information on these basic questions. As I indicated, in the last election, 98% of our communications and outreach expenses were focused precisely on that task.

The proposed measure would not simply continue to make this a priority: it would ban all other public communications, effectively prohibiting us from publishing basic research, participating in civic education initiatives, and informing Canadians on fraudulent activities or on measures to prevent them.

The Chief Electoral Officer needs to be able to speak freely and openly about any aspect of the electoral process. The restriction imposed would limit my ability to properly administer and supervise free and fair elections, and it would undermine public confidence in our electoral process.

A fourth area of concern regarding Bill C-23 is the weakening of the Commissioner's ability to effectively intervene and enforce the Canada Elections Act.

Both the former and the present Commissioner have indicated that the Commissioner's effectiveness depends on having direct and unfettered access to information and expertise within Elections Canada. They are also concerned that placing the Commissioner within the Office of the Director of Public Prosecutions would undermine the Commissioner's ability to intervene during the election period, in coordination with Elections Canada and election officers, to resolve situations of non-compliance.

Both have also stressed the importance of amending Bill C-23 to include a power to seek judicial authorization to compel witnesses to testify. They have indicated that the absence of such a power has been an important challenge in getting to the facts in major investigations of election offences.

Fifth, and finally, I do not believe that Canadians' trust in the integrity of their electoral system is improved by the addition of central poll supervisors to the list of election workers nominated by political parties. All election officers should be appointed based exclusively on merit, and in particular central poll supervisors. In my view, this provision should be deleted from the bill.

Conclusion

When I look at all of these issues, and I consider the important challenges that face our electoral democracy, I cannot but conclude that changes to the bill are required – changes that include but go beyond issues related to voter identification.

I hope that this Committee and that the Senate as a whole will, in their wisdom, make the necessary changes to the bill in order to allow a broader consensus. I believe that this is critical to foster trust in our electoral system and I would be happy to assist in that regard. As I indicated at the outset, I have brought with me a table of proposed amendments, and I am certainly open to exploring other alternatives with this Committee.